Bryce A. Burton v. Martin Benner and Indiana State Police

FILED

Mar 03 2020, 9:22 am

CLERK

Indiana Supreme Court

Court of Appeals

and Tax Court

IN THE

Indiana Supreme Court

Supreme Court Case No. 19S-CT-549

Bryce A. Burton,

Appellant,

–v–

Martin Benner and Indiana State Police,

Appellees.

Argued: November 26, 2019 | Decided: March 3, 2020

Appeal from the Benton Circuit Court

No. 04C01-1612-CT-176

The Honorable Hunter J. Reece, Special Judge

On Petition to Transfer from the Indiana Court of Appeals

No. 19A-CT-135

Opinion by Justice David

Chief Justice Rush and Justices Massa, Slaughter, and Goff concur.

David, Justice.

Certain negligent acts or omissions on the part of a government

employee have the potential to remove the shield of respondeat superior

and expose the employee to personal liability. Under the Indiana Tort

Claims Act, there are only a handful of well-delineated pathways to

accomplish this task. One of those paths is to show that the employee’s act

or omission was “clearly outside the scope of the employee’s

employment.” Ind. Code § 34-13-3-5(c)(2).

Here, Bryce Burton attempted to sue Indiana State Trooper Martin

Benner in his personal capacity after the two were involved in an accident

in rural Benton County. At the time of the accident, Trooper Benner was

off duty but was operating his state issued police commission as allowed

under State Police policy. Arguing he was acting within the scope of his

employment at the time of the accident, Benner sought summary

judgment on whether he could be held personally liable for any damages

that flowed from the incident. The trial court awarded summary judgment

in favor of Benner because though off duty, Benner was otherwise in

substantial compliance with State Police policy in operating his

commission and was therefore not clearly outside the scope of his

employment. The Court of Appeals reversed, opining that reasonable

minds could disagree whether the trooper was outside the scope of his

employment and summary judgment was thus inappropriate.

We granted transfer and now find that, although there is some evidence

that Trooper Benner was not in strict compliance with State Police policy

at the time of the accident, this was not enough to place him “clearly

outside” the scope of his employment. Accordingly, we affirm the

judgment of the trial court.

Facts and Procedural History

As of 2015, Indiana State Trooper Martin Benner had been employed by

the Indiana State Police for eighteen years. As part of his employment, the

State Police issued Benner an unmarked 2012 Dodge Charger—commonly

referred to as the trooper’s “commission.” Troopers that operate State

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Police commissions are subject to a Standard Operating Procedure that

establishes guidelines for the operation of the vehicle when the officer is

on- or off-duty and during both emergency and non-emergency driving

situations. Under the policy, employees that operate a commission are

required, among other things, to maintain radio contact at all times (even

while off-duty), to not violate any traffic law unless necessary in

performance of official duties, and to respond to emergency situations if

they are “assigned or made aware of a nearby situation.” (Appellant’s

App. Vol. 2 at 37-39.) The policy also authorizes employees to exercise de

minimis use of their commission for limited and reasonable personal

transportation.

On June 4, 2015, Trooper Benner completed his road patrol duties for

the day, went home to take a shower, and re-entered his commission to

drive to his son’s baseball game. Now in street clothes, Benner was

traveling southbound on Meridian Road south of State Road 352 in Benton

County when he decided to pass the vehicle in front of him after

northbound traffic cleared. As he departed the southbound lane, he

noticed a motorcycle in the northbound lane approaching him from

approximately 139 yards away. Benner quickly slowed his vehicle and

moved back into his own lane, but not before the oncoming motorcycle

locked its brakes, swerved from side to side, rolled over, and ejected both

the operator—Plaintiff Bryce Burton—and Burton’s passenger.

Burton filed suit against Benner alleging the trooper was negligent in

operating his vehicle and seeking damages for the injuries he sustained in

the accident. Benner moved for summary judgment, arguing that he was

acting within the scope of employment while driving his commission and

was thus immune from personal liability under Indiana Code chapter 34-

13-3 (Tort Claims Against Governmental Entities and Public Employees).

Benner also alleged that Burton was contributorily negligent so as to bar

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recovery under the common law.1 The trial court granted partial summary

judgment on the first issue in Trooper Benner’s favor, finding that he was

not “clearly outside” the scope of his employment when the incident

occurred.2 After the Indiana State Police was added as a defendant, Benner

sought and obtained dismissal of the suit against him in his personal

capacity. Burton appealed.

In a unanimous opinion, the Court of Appeals reversed. Burton v.

Benner, 127 N.E.3d 1198, 1200 (Ind. Ct. App. 2019). While the “salient facts

[were] undisputed,” the Court of Appeals found “the inferences that can

be made from and conclusions that can be based on those facts are

anything but.” Id. Thus, the Court of Appeals concluded summary

judgment in favor of Trooper Benner was inappropriate because

reasonable factfinders could disagree on whether Benner was acting

outside the scope of his employment at the time of the accident. Id.

The State sought transfer, which we granted, thereby vacating the

Court of Appeals opinion. Ind. Appellate Rule 58(A).

Standard of Review

When this Court reviews a grant or denial of a motion for summary

judgment, we “stand in the shoes of the trial court.” Murray v. Indianapolis

Public Schools, 128 N.E.3d 450, 452 (Ind. 2019) (quoting Campbell

Hausfeld/Scott Fetzer Company v. Johnson, 109 N.E.3d 953, 955-56 (Ind.

2018)). We ask, “whether there is a genuine issue of material fact, and

whether the moving party is entitled to judgment as a matter of law.”

1See Mangold ex rel. Mangold v. Indiana Dep’t of Natural Resources, 756 N.E.2d 970, 977 (Ind.

2001) (Shepard, C.J., concurring and delivering the Court’s opinion in Part III) (explaining

claims brought against government entities under the Indiana Tort Claims Act are subject to

the common law theory of contributory negligence which bars a plaintiff’s recovery if the

plaintiff was even slightly negligent).

2The trial court denied summary judgment on Benner’s contributory negligence theory.

Accordingly, Burton sought—and was granted—leave to amend his complaint to add the

Indiana State Police as a defendant.

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Goodwin v. Yeakle’s Sports Bar and Grill, Inc., 62 N.E.3d 384, 386 (Ind. 2016)

(citation omitted). The party moving for summary judgment bears the

burden of making a prima facie showing that there is no issue of material

fact and that it is entitled to judgment as a matter of law. Id. The burden

then shifts to the non-moving party to show the existence of a genuine

issue. Id. On appellate review, we resolve “[a]ny doubt as to any facts or

inferences to be drawn therefrom … in favor of the non-moving party.” Id.

Summary judgment is appropriate if the designated evidence “shows

that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C).

Discussion and Decision

Because Trooper Benner raised an affirmative defense that he was

immune from personal liability under the Indiana Tort Claims Act

(“ITCA”), the issue in this case is whether Benner was acting “clearly

outside” the scope of his employment at the time of the accident such that

he could be held personally liable for the injuries sustained by Burton. The

State urges us to affirm the trial court’s order granting summary judgment

in favor of Benner on this issue, while Burton argues there is a genuine

issue of material fact that should be decided by a jury.

The ITCA “governs lawsuits against political subdivisions and their

employees.” Bushong v. Williams, 790 N.E.2d 467, 472 (Ind. 2003); Ind.

Code § 34-13-3-1 et seq. The statute sets forth certain parameters to

determine liability for negligent acts or omissions on the part of

government employees and “provides substantial immunity for conduct

within the scope of the employee’s employment.” Id. “The purpose of

immunity is to ensure that public employees can exercise their

independent judgment necessary to carry out their duties without threat

of harassment by litigation or threats of litigation over decisions made

within the scope of their employment.” Celebration Fireworks, Inc. v. Smith,

727 N.E.2d 450, 452 (Ind. 2000) (citation omitted). Relevant to the present

case, “A lawsuit filed against an employee personally must allege that an

act or omission of the employee that causes a loss is … clearly outside the

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scope of the employee’s employment.” Ind. Code § 34-13-3-5(c)(2)

(emphasis added).3

Generally speaking, “whether an employee’s actions were within the

scope of employment is a question of fact to be determined by the

factfinder.” Knighten v. East Chicago Housing Authority, 45 N.E.3d 788, 794

(Ind. 2015) (citation omitted). When the facts are undisputed and “would

not allow a jury to find that the tortious acts were within the scope of

employment,” however, a court may conclude as a matter of law that the

acts were not in the scope of employment. Cox v. Evansville, 107 N.E.3d

453, 460 (Ind. 2018).

Under the doctrine of respondeat superior, an employee’s act or

omission falls within the scope of employment if the injurious behavior is

incidental to authorized conduct or furthers the employer’s business to an

appreciable extent. Knighten, 45 N.E.3d at 792 (citation omitted).

Conversely, “an employee’s act is not within the scope of employment

when it occurs within an independent course of conduct not intended by

the employee to serve any purpose of the employer.” Id. (quoting Barnett

v. Clark, 889 N.E.2d 281, 284 (Ind. 2008)). But “an employee's wrongful act

may still fall within the scope of his employment if his purpose was, to an

appreciable extent, to further his employer's business, even if the act was

predominantly motivated by an intention to benefit the employee

himself.” Id. Ultimately, we have found that “the scope of employment

encompasses the activities that the employer delegates to employees or

authorizes employees to do, plus employees’ acts that naturally or

predictably arise from those activities.” Cox, 107 N.E.3d at 461.

Viewing this lawsuit through the ITCA, the question becomes whether

Trooper Benner was “clearly outside” the scope of his employment when

the accident occurred. The State urges that Trooper Benner was within the

3Indiana Code section 34-13-3-5(c) also authorizes a lawsuit to be filed against an employee

personally if the plaintiff alleges the employee’s act or omission is criminal, malicious, willful

and wanton, or calculated to benefit the employee personally. Those circumstances have not

been alleged in the present suit.

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scope of employment because, even though he was off duty, he was

required by State Police policy to maintain radio contact, respond to

emergencies, carry a firearm, and conform to a certain dress code. This,

the State argues, furthers State Police business by providing an increased,

more visible presence on the roads. Additionally, the State believes that if

Benner’s acts arguably fell within the scope of his employment, then by

definition the acts cannot be “clearly outside” the scope of his

employment.

Burton, on the other hand, argues that Benner’s actions had no causal

connection to his employment and any minimal compliance with State

Police policy should not immunize the trooper from personal liability.

Unlike cases where police misconduct occurred while officers were on

duty, see Cox, 107 N.E.3d at 463-64, Burton urges this Court to find that no

nexus of employment existed in this case because there was a complete

divorce in time and activity between the end of Benner’s shift and the

accident. For the reasons expressed below, we agree with the State that

Benner’s involvement in the accident was not “clearly outside” the scope

of his employment.

The undisputed evidence in this case indicates Trooper Benner

complied with the vast majority of State Police procedures for operating

his police commission while off duty. His “conduct [was] of the same

general nature as that authorized, or incidental to the conduct authorized”

by the State Police, Bushong, 790 N.E.3d at 473 (quoting Celebration

Fireworks, 727 N.E.2d at 453), and included maintaining radio contact and

conforming to a dress code. Additionally, as the trial court observed,

Benner’s presence on the road and his ability to respond to nearby

emergency situations undoubtably provided a benefit to the State Police

through increased police presence on the roads. This ability to suddenly

become available for official duties certainly “furthers his employer’s

business.” Id. (citation omitted). Compare with Cox, 107 N.E.3d at 462

(“[T]ortious acts are not within the scope of employment when they flow

from a course of conduct that is independent of activities that serve the

employer”).

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To the extent Burton argues Trooper Benner’s violation of traffic laws

exposed him to personal liability under the ITCA, we disagree.4 True,

State Police policy expressly prohibits violation of traffic laws, but in our

view, the violation in this case did not move Benner “clearly outside” the

scope of his employment. Recall that the scope of employment “may

include acts that the employer expressly forbids” or “that violate the

employer’s rules, orders, or instruction.” Cox, 107 N.E.3d at 461. While

State Police policy forbids speeding in non-emergency situations,

speeding could “naturally or predictably arise” from driving a

commission even while off duty. See id. at 461-62. The “clearly outside”

standard set forth in Indiana Code section 34-13-3-5(c)(2) represents a high

bar and, in this case, we are not convinced that bar has been cleared.

To be sure, there is no precise formula to determine whether an act is

“clearly outside” the scope of employment. There could certainly be

circumstances that would oblige such a finding, but given the evidence

presented in this case, we cannot say Trooper Benner was acting clearly

outside the scope of his employment.

Conclusion

We find that there is no genuine issue of material fact as to whether

Trooper Benner was acting “clearly outside” the scope of his employment.

As such, the trial court properly granted Benner’s motion for summary

judgment on this issue.

The judgment of the trial court is affirmed.

4 The speed limit in the area of the accident was fifty-five miles per hour. Although conflicting

testimony estimated Benner’s speed at between sixty-two and sixty-five miles per hour before

he began to brake, there is no dispute he was operating his commission beyond the speed

limit while he attempted to pass the other vehicle.

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Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.

ATTORNEYS FOR APPELLANT

Karl L. Mulvaney

Margaret M. Christensen

Nana Quay-Smith

Bingham Greenbaum Doll, LLP

Indianapolis, Indiana

R.T. Green

Kellie C. Clark

Collin W. Green

Blackburn & Green

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Aaron T. Craft

Deputy Attorney General

Indianapolis, Indiana

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